VARIOUS  PHASES  OF  LABOR  LEGIS- 
LATION WITH  REGARD  TO 
CONSTITUTIONALITY 


BY 

O.  JOHN  ROGGE 


THESIS 


FOB  THE 


DE6REEOF  BACHELOR  OF  ARTS 

JN 


POLITICAL  SCIENCE 


COLLEGE  OF  LIBERAL  ARTS  AND  SCIENCES 


UNIVERSITY  OF  ILLINOIS 


1922 


VARIOUS  PHASES  OF  LABOR  LEGIS- 
LATION WITH  REGARD  TO 
CONSTITUTIONALITY 


O.  JOHN  ROGGE 


THESIS 


FOR  THE 


DEGREE  OF  BACHELOR  OF  ARTS 

IN 


POLITICAL  SCIENCE 


COLLEGE  OF  LIBERAL  ARTS  AND  SCIENCES 

UNIVERSITY  OF  ILLINOIS 


1922 


/ 922 
P?6  3 v 


UNIVERSITY  OF  ILLINOIS 


THIS  IS  TO  CERTIFY  THAT  THE  THESIS  PREPARED  UNDER  MY  SUPERVISION  BY 


DEGREE  OF  _ 


Digitized  by  the  Internet  Archive 
in  2016 


https://archive.org/details/variousphasesoflOOrogg 


VARIOUS  PHASES  OE  LABOR  LEGISLATION  WITH  REGARD  TO  CjfiAtllvtm 


BIBLIOGRAEHY 

Commons  and  Andrews,  Principles  of  Labor  Legislation,  Ed.  1920. 

Goodnow,  Social  Reform  and  the  Constitution. 

Clark,  The  Lav/  of  the  Employment  of  Labor 

Bulletins  of  the  Industrial  Commission  of  Ohio. 

Workmen* s Compensation  Report,  Senate  Document  419,  63rd  Con- 
gress, 2nd  Session. 

United  States  Bureau  of  Labor  Bulletins. 

State  and  United  States  Statutes. 

Monthly  Labor  Reviews. 

Groat,  Attitude  of  American  Courts  in  Labor  Cases. 


CASES  CITED. 

Bailey  v.  Alabama,  31  Sup.  Ct.  145. 

Robertson  v.  Baldwin,  17  Sup.  Ct.  326. 
fpchner  v.  Hew  York,  25  Sup.  Ct.  539. 

Bunting  v.  Oregon,  37  Sup.  Ct.  435. 

Holden  v.  Hardy,  169  U.  S.  366. 

Ives  v.  South  Buffalo  Railway  Company,  201  N . Y.  271. 
Cunningham  v.  Northwestern  Improvement  Company,  44  Mont.  180. 
Deibeikis  v.  Link  Belt  Company,  104  N.E.  211. 


•*~2 


r 


t 


7 


In  re  Opinion  of  Justices,  96  N.  E.  308. 

Wheeler  v.  Contoocook  Mills,  94  Atl.  265. 

Sexton  v.  Newark  District  Telegraph  Co.  86  At.  451. 

State  v.  Creamer,  85  Ohio  State  349. 

State  v.  Clausen,  117  Pac.  110. 

Borgius  v.  Falk  Company,  133  N.  W.  209. 

Behringer  v.  Inspiration  Consolidated  Copper  Company,  149 
Pac.  1065. 

Mac  kin  v.  Detroit  Timkin  Axle  Company,  150  N.  V/.  49. 

Sayles,  v.  Foley,  96  Atl.  340. 

Jensen  v.  Southern  Pacific  Company,  109  N.  E.  600. 

DeFrancesco  v.  Piney  Mining  Company,  86  £. E.  777. 

Evanhoff,  v.  State  Industrial  Commission,  154  Pac.  106 

Matheson  v.  Minneapolis  Street  Railway  Company,  148  N.  W.  72. 

Hunter  v.  Colfax  Consolidated  Coal  Company,  154  N.W.  1037. 

Middleton  v.  Texas  Power  and  Light  Company,  185  S.  W.  556. 

Kentucky  State  Journal  Company,  v.  Workmen's  Compensation 
Board,  170  S.  W.  1166. 

Anderson  v.  Carneigie  Steel  Company,  99  Atl.  215. 

Western  Indemnity  Company  v.  Pillsbury,  151  Pac.  398. 

Adams  v.  Iten  Biscuit  Company,  52  Okla*  630 

New  York  Central  Railway  Company  v.  White,  243  U.S.  188. 

Hawkins  v.  Bleakly,  243  U*S.  210 

Mountain  Timber  Company  v.  Washington,  243  U.S.  219. 
Middleton,  v.  Texas  Light  and  Power  Company,  249  U.S.  152 
New  York  Central  Railway  Company  v.  Bianc.  250  U*S.  596. 


r 


( 


c 


Peters  v.  Veasey,  251. U.S.  149. 

Knickerbocker  Ice  Company  v.  Stewart,  253  U.S.  149. 
Thornton  v.  Duffy,  254  U.S.  361 

Tower  Vein  Coal  Company  v.  Industrial  Board  of  Indiana, 

65  L.  Ed.  383. 

Brant  Smith-Porter  Ship  Company  v.  Rhode,  66  i.  Ed.  172. 


VARIOUS  PEASES  OP  LABOR  LEG I SLAP ICE  WITH  REGARD 

to 

TABLE  OP  CONTENTS . 

Page . 

Introduction 

Workmens  Compensation 

State  Legislation  and  Court  Decisions 
to  1917.. 

Act  Widening  Appeal 

State  Legislation  and  Decisions  since 
1917 

Conclusion 

* 

. ■ ijk c 


* 


1. 


VARIOUS  PHASES  OF  LABOR  LEGISLATION 
WITH  REGARD  TO  CONSTITUTIONALITY 

It  is  the  purpose  of  this  paper  to  examine  into  the  state 
governmental  action  taken  in  regard  to  labor  with  the  resulting 
court  decisions,  and,  in  conclusion,  note  whether  there  are  any 
principles  underlying  the  action  taken  and  whether  there  is  any 
trend  of  opinion  which  regards  labor  in  a different  light  than  it 
has  been  considered.  I shall  first  discuss  labor  and  the  labor  con- 
tract, and  then  take  up  the  various  phases  of  state  governmental 
action. 

We  have  expanded  from  a nation  having  a surplus  of  reserve 
land  to  a nation  in  which  all  the  arable  land  is  taken  up;  from  a 
country  comprised  of  mostly  independent  farmers  to  a country  in 
which  single  establishments  have  thousands  and  ten  thousands  of 
workers,  and  one,  the  United  States  Steel  Corporation,  over 
200,000.  These  factors  have  combined  to  produce  a large  class  per- 
manently dependent  on  wages. 

Along  with  this  we  have  the  labor  contract  which,  exter- 
nally at  least,  appears  as  any  other  contract,  but  which  in  the 
course  of  time  has  come  to  be  looked  upon  as  something  peculiar, 
due  partly  to  the  fact  that  when  a laborer  agrees  to  work  he  must 
deliver  himself  up  for  a time  into  the  control  of  another.  After 
having  contracted,  however,  he  cannot  be  forced  to  perform,  for 
this  would  be  involuntary  servitude  and  contrary  to  the  thirteenth 


, 


2 


amendment.  This  principle  is  upheld  in  Bailey  v.  Alabama.  The 

court  said:  "The  act  of  Congress  nullifying  all  state  laws  by 

which  it  should  be  attempted  to  enforce  the  service  or  labor  of 

any  persons  or  peons,  in  liquidation  of  any  debt  or  obligation  or 

otherwise,  necessarily  embraces  all  legislation  which  seeks  to 

compel  the  service  or  labor  by  making  it  a crime  to  refuse  to  or 

* 

fail  to  perform  it."  ~ Seamen,  however,  are  excepted,  as  was 
decided  in  the  case  of  Robertson  v.  Baldwin,  the  court  saying, 

"We  know  of  no  better  answer  to  make  than  to  say  that  services 
which  have  from  time  immemorial  been  treated  as  exceptional  shall 
not  be  regarded  as  within  its  purview." 

On  the  other  hand,  many  progressive  laws  have  been  over- 
thrown because  it  is  alleged  that  they  impair  the  freedom  of  con- 
tract, and  thus  violate  the  clause  in  the  fourteenth  amendment 
which  declares  that  a person  shall  not  be  deprived  of  "life,  liberty 
or  property  without  due  process  of  law."  In  the  case  of  Lockner 
v.  New  York,  a New  York  statute  forbidding  any  employee  in  a 
bakery  or  confectionery  establishment  to  be  permitted  to  work 
over  60  hours  in  any  one  week,  or  an  average  of  over  10  hours  a 
day  for  the  number  of  days  employees  should  work,  was  delcared 

£ 


Bailey  v.  Alabama  (1911)  219  U.S.  219,  31  Sup.  Ct.  145. 

Robertson  v.  Baldwin  (1897)  165  U.S.  275,  17  Sup. 

Ct.  326. 


, 


« 


* 


» 


3 


invalid  because  it  abridged  the  freedom  of  contract.  The  court 
said:  "The  statute  necessarily  interferes  with  the  right  of  con- 

tract between  the  employer  and  the  employees  concerning  the  num- 
ber of  hours  in  which  the  latter  may  labor.  The  general  right  to 
mate  a contract  in  relation  to  his  business  is  part  of  the  liberty 
of  the  individual  protected  by  the  fourteenth  amendment  of  the 
constitution.  ...  Statutes  of  the  nature  of  that  under  review, 
limiting  the  hours  in  which  grown  and  intelligent  men  may  labor 
to  earn  their  living,  are  mere  meddlesome  interferences  with  the 
rights  of  the  individual,  and  they  are  not  saved  from  condemnation 
by  the  claim  that  they  are  passed  in  the  exercise  of  the  police 
power  and  upon  the  subject  of  the  health  of  the  individual  whose 
rights  are  interfered  with,  unless  there  be  some  fair  ground,  rea- 
sonable in  and  of  itself,  to  say  that  there  is  material  danger  to 
the  public  health, or  to  the  health  of  the  employees,  if  the  hours 
of  labor  are  not  curtailed."  * 

Such  was  the  early  stand  of  the  court,  but  it  has  been 
practically  overruled  by  the  later  case  of  Bunting  v.  Oregon.  An 
Oregon  statute  prividing  that  "no  person  shall  be  employed  in 
mill,  factory,  or  manufacturing  establishment  in  this  state  more 
than  ten  hours  in  any  one  day,  except  watchmen  and  employees  when 

* lipchner  v.  New  York  (1905)  198  U.S.  45,  25  Sup. 

Ct.  559. 


4 


engaged  in  making  necessary  repairs,  or  in  case  of  emergency, 
where  life  or  property  is  in  imminent  danger;  provided,  however, 
employees  may  work  overtime  not  to  exceed  three  hours  in  any  one 
day,  conditioned  that  payment  he  made  for  such  overtime  at  the 
rate  of  time  and  one  half  of  the  regular  wage"  was  upheld  as  a 
valid  exercise  of  the  police  power  because  the  state  protected 
the  physical  well-being  of  its  citizens.  "It  is  enough  for  our 
decision  if  the  legislation  under  review  was  passed  in  the  exer- 
cise of  an  admitted  power  of  government  (police  power);  and  that 
it  is  not  as  complete  as  it  might  be,  not  as  rigid  in  its  pro- 
hibitions as  it  might  be,  gives,  perhaps,  evasion  too  much  play, 
is  lighter  in  its  penalties  than  it  might  be,  is  no  impeachment 
of  its  legality."  * 

A somev/hat  different  viewpoint  was  stressed  in  the  case 
of  Holden  v.  Hardy.  The  court  said:  "The  legislature  has  also 

recognized  the  fact,  which  the  experience  of  legislators  in  many 
states  has  corroborated,  that  the  proprietors  of  these  establish- 
ments and  their  operatives  do  not  stand  upon  an  equality,  and 
that  their  interests  are,  to  a certain  extent,  conflicting."  ** 

These  unusual  relations  between  a "propertyless  seller 

* Bunting  v.  Oregon  (1917)  343  U.3.  426,  37  Sup.  Ot. 

435. 

** 


Holden  v.  Hardy  169  U.S.  366 


5 


of  himself,  on  the  one  hand,  and  a propertied  buyer  on  the  other, 
coupled  as  it  is  with  the  equal  suffrage  of  both  in  the  politics 
of  the  country,  has  gradually  acquired  recognition  as  something 
sufficiently  important  for  the  government  to  take  notice  of."  * 

The  tremendous  changes  in  political  and  social  conditions  due  to 
the  adoption  of  improved  means  of  transportation  and  to  the  estab- 
lishment of  the  factory  system  have  brought  with  them  problems 
whose  solution  seems  to  be  impossible  under  the  principles  of  law 
which  were  regarded  as  both  axiomatic  and  permanently  enduring  at 
the  end  of  the  eighteenth  century.”  **  Now  what  were  some  of  the 
common  law  doctrines  with  regard  to  the  relations  between  employee 
and  employer? 

On  the  one  hand,  the  employer  was  required  to  use  due 
care  for  the  safety  of  his  employees  while  engaged  in  his  service, 
and  this  was  taken  to  "include  all  reasonable  means  and  precautions, 
the  facts  in  each  particular  case  being  taken  into  consideration."*^ 
On  the  other  hand,  we  had  the  doctrines  of  assumed  risk,  contrib- 
utory negligence,  and  fellow- servant.  In  the  first  place  we  had 
the  principle  of"Volenti  non  fit  injuria"  which  is  translated 


Commons  and  Andrews,  Principles  of  Labor  Legislation, 
1920,  p.  2. 

Goodnow,  Social  Reform  and  the  Constitution,  p.  1. 
Clark,  The  Law  of  the  Employment  of  Labor,  p.  125. 


. 


. 


, 


, 

! 


, 


6. 

freely  to  mean,  "That  to  which  a person  assents  is  not  esteemed 
in  law  an  injury."  In  other  words,  the  employee  assumed  the  ordin- 
ary risks  incident  to  the  employment,  "and  of  such  other  risks 
as  may  he  known  and  appreciated  by  him."  * Besides  this,  in 
order  for  an  employee  to  win  his  case,  he  must  establish  his 
own  freedom  from  negligence,  he  must  show  that  he  has  not  contrib- 
uted to  the  negligence  of  his  employer.  In  the  last  instance,  the 
fellow-servant  rule  relieved  "the  master  from  all  liability  for 
an  injury  sustained  on  account  of  the  negligence  or  carelessness 
of  a fellow-servant  provided  the  master  had  exercised  reasonable 
care  in  his  selection,"  **  which  may  be  easily  proven.  Through 
these  three  loopholes  many  employers  were  able  to  escape,  and 
only  a small  number  of  employees  received  compensation  for  the 
injuries  sustained.  Moreover,  many  cases  did  not  even  reach  the 
courts  because  the  employee  knew  that  all  the  odds  were  against 
him.  The  problemceased  to  be  an  individual  one,  and  became  a 
social  evil. 

At  first  v/e  had  legislative  regulation;  but  this  was 
inadequate  due  to  the  incompleteness  of  these  laws,  to  their  de- 
fective enforcement  in  many  cases,  and  to  the  absence  of  well-de- 

* Ibid.  p.  141. 

**  Commons  and  Andrews,  Principles  of  Labor  Legislation, 
p.  390. 


; 


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t 

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7. 


fined  standards.  Attempts  were  made  to  place  more  liability  upon 
the  employer,  but  the  machinery  was  still  too  slow  and  expensive. 
"Of  every  $100.  paid  by  the  employer  in  premiums,  but  $28.  reached 
the  workman,  and  that  amount  only  after  a long  legal  action  in 
many  instances."  * The  next  step  was  Workmens  Compensation. 

"The  theory  of  Workmen1 s Compensation  is  that  industry 
should  bear  the  loss  of  life  and  limb  incurred  in  the  production 
of  its  finished  product,  just  as  it  bears  the  expense  of  replacing 
wornout  and  broken  machinery;  and  that  for  every  injury  incurred 
in  the  course  of  employment  some  fixed  amount  should  be  provided 
in  the  way  of  compensation  to  the  person  incurring  the  injury,  or 
to  his  dependents  in  case  of  his  death;  and  tti  s without  regard  to 
the  question  of  fault  or  negligence  of  the  employer,  because  many 
injuries  or  deaths  are  bound  to  occur  under  modern  conditions  even 
when  the  utmost  care  is  exercised  by  both  the  employer  and  the 
employee."  **  The  practical  application  of  this  doctrine  in- 
volves a virtual  abandonment  of  the  common  law  principles  and  many 
statutory  enactments  known  as  "employers*  liability  acts."  In 
other  words,  an  award  of  a fixed  sum  is  provided  for  injuries 
for  which  the  employment  is  responsible  instead  of  a suit  for  dam- 
ages and  the  question  of  fault. 

Ibid.  p.  392.  Records  taken  from  10  insurance  com- 
panies for  a period  of  three  years. 

**  Bulletin  of  the  Industrial  Commission  of  Ohio.  Jan. 

1,  1915,  p.  3. 


8. 


Or,  as  the  investigating  commission  of  the  American 
Federation  of  Labor  and  the  National  Civic  Federation  has  put  it: 
"The  principle  of  workmen's  compensation  is  that  industry  should 
bear  the  financial  burden  of  all  industrial  accidents  rather  than 
the  workers  who  happen  to  be  the  victims  of  particular  accidents, 
and  that  the  only  way  this  can  be  accomplished  is  through  the  agency 
of  the  employer  who,  in  computing  costs  and  fixing  the  price  of  his 
finished  product  will  include  the  industrial  losses  due  to  acci- 
dents. Industrial  operations  being  broadly  considered,  the  ques- 
tion of  direct  fault  is  not  material.  The  fact  that  loss  of  bodily 
faculty  and  regular  wages  occurs  entitles  the  victim  to  compensa- 
tion unless  his  injuries  have  been  received  through  his  own  wilful 
intent."  * In  this  last  respect  workmens  compensation  differs  from 
employers*  liability,  for  under  the  latter  the  employer  paid  dam- 
ages only  where  the  accident  was  due  to  his  fault  or  the  fault  of 
his  employees. 

Such  a wide  departure  from  established  practices  would, 
under  our  legal  system,  naturally  involve  the  question  of  con- 
stitutionality, and  the  laws  were  attacked  under  the  various  grounds 
of  due  process,  unfair  classification,  freedom  of  contract,  and 

* Workmen's  Compensation  Report,  Senate  Document  419 
63rd  Congress,  2nd  session. 


, 


t 


' 

, 


9. 


equal  protection  of  the  law.  The  first  act  was  passed  by  the  State 
of  Maryland  in  1902  in  the  form  of  a cooperative  insurance  law. 

This  statute  was  restricted  in  its  application  to  quarrying,  mining, 
steam  and  street  railway  service,  and  to  municipalities  engaged 
in  the  construction  of  sewers  or  other  excavations  or  physical 
structures.  Liability  was  extended  where  employees  were  injured 
through  the  negligence  of  a fellowservant , and  where  the  injured 
negligently  contributed  to  his  own  injury;  but  the  act  further 
provided  that  an  employer  might  be  exempted  if  he  made  certain 
annual  payments  in  monthly  installments  for  the  maintenance  of  an 
insurance  fund.  This  statute  was  declared  unconstitutional  in 
1904  by  the  Court  of  Common  Pleas  of  Baltimore  on  the  ground  that 
it  deprived  parties  of  the  right  of  trial  by  jury  and  conferred 
upon  an  executive  officer  at  least  quasi- judicial  functions.  Judge 
Stockbridge  delivered  the  opinion  as  follows:  "The  effect  of  the 

act  was,  therefore,  not  only  to  vest  in  the  insurance  commissioner 
powers  and  functions  essentially  judicial  in  their  character,  but 
to  take  away  from  the  citizens  the  legal  right  which  they  had  here- 
tofore enjoyed,  and  which  would  be  enforced  by  them  in  the  courts, 
and  also  to  deny  to  them  the  right  to  have  their  cases  heard  before 
a jury."  * The  case  was  not  appealed  to  the  supreme  court. 

* United  States  Bureau  of  Labor.  Bulletin  57,  p. 

690. 


: 


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10 


The  next  act  which  was  questioned  and  declared  unconsti- 
tutional was  a New  York:  Compulsory  Workmens  Compensation  statute 
for  certain  dangerous  employments  such  as  work  in  the  construction 
of  tunnels  and  subways,  things  charged  with  electric  currents, 
work  on  scaffolds  over  twenty  feet  high,  work  carried  on  under 
compressed  air,  etc.  The  case  was  Ives  v.  South  Buffalo  Railway 
Company,  decided  in  March,  1911.  The  court  did  not  doubt  the  power 
of  the  legislature  to  regulate,  modify  or  abolish  the  fellow-ser- 
vant and  the  contributory  negligence  doctrines,  but  declared 
it  invalid  as  in  conflict  with  this  provision  of  their  state  con- 
stitution: "The  trial  by  jury  in  all  cases  in  which  it  has  been 

heretofore  used  shall  remain  inviolate  forever."  The  court  said: 

"In  other  words,  the  objection  which  we  are  now  considering  bears 
solely  upon  the  question  whether  the  two  last  mentioned  sections 
of  the  statute  (dispensing  with  suit  for  damages  at  common  law) 
deprive  the  employer  of  the  right  to  have  a jury  fix  the  amount 
which  he  shall  pay  when  his  liability  to  pay  has  been 
decided  against  him.  ...  The  argument  that  the  risk  to  an  employee 
should  be  borne  by  the  employer  because  it  is  inherent  in  the 
employment  may  be  economically  sound,  but  it  is  at  war  with  the 
legal  principle  that  no  employer  can  be  compelled  to  assume  a risk 
which  is  inseparable  from  the  work  of  the  employee,  and  which  may 
exist  in  spite  of  a degree  of  care  by  the  employer  far  greater 
than  may  be  exacted  by  the  most  drastic  law.  ...  We  conclude, 
therefore,  that  in  its  basic  and  vital  features  the  right  given 


» » » 


11 


to  the  employees  hy  this  statute,  does  not  preserve  to  the  employer 
the  'due  process*  of  law  guaranteed  by  the  Constitutions,  for  it 
authorizes  the  taking  of  the  employer* s property  without  his  con- 
sent and  without  his  fault,"  * 

The  next  statute  which  was  questioned  was  a compulsory 
Workmen's  Compensation  act  of  Montana.  The  act  provided: 

"Section  1.  : All  workmen,  laborers,  and  employees  employed  in 

and  around  any  coal  mines,  or  in  and  around  any  coal  washers  in 
which  coal  is  treated,  except  office  employees,  superintendents, 
and  general  managers,  shall  be  insured  in  accordance  with  the 
provisions  of  this  act,  against  accidents  occuring  in  the  course 
of  their  occupations.  Section  2.  All  corporations,  ...  engaged 
in  the  business  of  operating  any  coal  mine  or  coal  washers  in  the 
state  of  Montana  shall  pay  to  the  auditor  of  the  state,  within 
five  days  after  the  monthly  wages  at  the  particular  mine  shall  have 
been  paid,  one  per  cent  per  ton  on  the  tonnage  of  coal  mined  and 
shipped,  or  sold  locally,  or  having  been  mined  is  ready  for  sale 
during  the  month  for  which  the  wages  were  paid;  and  all  persons 
mentioned  in  section  one  employed  in  and  about  coal  mines  shall 
allow  to  be  deducted  from  their  gross  monthly  earnings  one  per 
cent  thereof  ...  ."  **  Injured  workmen,  however,  were  also  per- 

* 

** 


Ives  v.  South  Buffalo  Ry.  Go.  201  N.Y.  271.  (1911) 
Montana  laws  of  1909.  Chap.  67. 


• 

» 

12 


mitted  to  sue  under  the  employers*  liability  law;  but  in  so  doing 
forfeited  the  benefits  under  the  compensation  act.  This  law  was 
declared  unconstitutional  in  the  case  of  Cunningham  v.  Northwestern 
Improvement  Co.  The  court,  after  holding  the  act  as  within  the 
police  power,  not  an  example  of  class  legislation,  not  violating 
the  trial  by  jury  provision  ("The  right  of  trial  by  jury,  which 
is  secured  and  protected  by  the  constitution,  refers  to  the  trial 
of  cases,  actions,  or  suits  at  law,  and  has  no  reference  to  claims 
against  an  indemnity  fund,  such  as  are  provided  for  by  this  act”  *), 
that  it  was  due  process  of  law,  rested  its  decision  on  the  conten- 
tion that  the  employer  was  deprived  of  the  equal  protection  of  the 
laws  because  the  employee  was  given  the  option  of  suing  to  recover 
damages.  The  opinion  on  this  point  is  as  follows:  "The  injured 

employees  of  one  operator  may  all  resort  to  the  indemnity  fund, 
while  those  of  another  may  elect  to-appeal  to  the  courts.  The 
result  is  that  the  employer  against  whom  an  action  is  successfully 
prosecuted  is  compelled  to  pay  twice.  He  has  fully  paid  his  ass- 
essments under  the  act,  and  is  also  obliged  to  pay  damages.”  ** 

* Cunningham  v.  Northwestern  Improvement  Co.  44 

Mont.  180. 


Ibid 


15. 


In  1911  ten  laws  were  enacted  in  the  states  of 
California,  Illinois,  Kansas,  Massachusetts,  Nevada,  New  Hampshire, 
New  Jersey,  Ohio,  Washington,  and  Wisconsin.  The  laws  in  all  but 
two  of  these  states,  Kansas  and  Nevada,  we re  questioned,  and  in 
every  case  their  constitutionality  was  upheld. 

One  elective  act  which  was  upheld^was  an  Illinois  stat- 
ute questioned  in  the  case  of  Leibeikis  v.  Link  Belt  Co.  The 
court  emphasized  the  elective  features  and  declared  that  because 
of  thenij  neither  jury-  trial  nor  freedom  of  contract  was  denied.  With 
regard  to  the  common  law  doctrines  the  court  said:  "To  deprive 

an  employer,  under  such  circumstances,  of  the  right  to  assert 
those  defenses  is  not  an  exercise  of  the  police  power,  but  is  merely 
a declaration  by  the  legislature  of  the  public  policy  of  the  state 
in  that  regard.  The  right  of  the  legislature  to  abolish  these  de- 
fenses cannot  be  seriously  questioned."  * 

The  Massachusetts  elective  act  was  upheld  in  an  ad- 
visory judicial  opinion  before  passage.  The  argument  was  much  the 
same  as  that  used  by  the  Illinois  court.  With  regard  to  the 
common  law  defenses  the  Massachusetts  court  held  that  "the  rules 
of  law  relating  to  contributory  negligence  and  assumption  of  the 

* Deibeikis  v.  Link-Belt  Co.  104  N.E.  211. 


14. 


risk  and  the  effect  of  negligence  by  a fellow- servant  were  estab- 
lished by  the  courts,  not  by  the  Constitution,  and  the  Legislature 
may  do  away  with  them  altogether  ...  as  in  the  exercise  of  powers 
intrusted  to  it  by  the  Constitution  it  deems  will  be  best  for  the 
’good  and  welfare  of  this  commonwealth. 1 " * Because  of  the 
elective  features  of  the  act  it  was  further  held  that  the  law  did 
not  deny  jury  trial  or  freedom  of  contract. 

The  New  Hampshire  elective  statute  was  upheld  in  the 
case  of  Wheeler  v.  Contoocook  Mills.  The  court  held  the  act  within 
the  police  power  and  stated  that  the  legislature  had  the  power,Tto 
abolish  entirely  the  defenses  of  contributory  negligence,  assumption 
of  risk,  and  the  fellow-servant  rule.”  ** 

The  Supreme  Court  of  Hew  Jersey  also  upheld  the  Compen- 
sation statute  of  that  state  in  the  case  of  Sexton  v.  Newark:  District 
Telegraph  Co.  After  stating  that  the  common  law  defenses  were 
merely  rules  of  conduct  and  could  be  changed  at  the  will  of  the 
Legislature,  unless  prevented  by  constitutional  limitations,  they 
held  that  the  elective  act  did  not  deny  due  process  of  law,  jury 
trial  or  freedom  of  contract,  with  regard  to  these  the  court  said: 
"If  he  does  not  (accept  the  provisions  of  the  act)  he  certainly  is 


* 


In  re  Opinion  of  Justices  96  N.E.  308. 
Wheeler  v.  Contoocook  Mills.  94  Atl.  265. 


I 


' 


, 


t 


15. 


not  deprived  of  property  without  due  process  of  law.  If  he  does, 
then  he  has  given  the  consent  which  the  prosecutor  contends  he  must 
give  in  order  to  be  bound  by  the  pro  visions  of  the  second  section. 
...  This  contention  (deprivation  of  trial  by  jury)  totally  mis- 
conceives the  proper  conjtruction  and  effect  of  the  constitutional 
provision  in  question.  The  language,  with  respect  to  tills  mode  of 
trial,  is  that  it  shall  remain  inviolate,  not  that  it  shall  be 
unalterable.  It  is,  therefore,  a privilege  which  may  be  waived 
by  either  party,  and  not  an  absolute  right  which  is  not  the 
subject  of  such  a waiver.  ...  Really,  the  matter  (with  regard 
to  freedom  of  contract)  comes  down  to  a question  or  presumption 
or  burden  of  proof,  which  it  is  entirely  within  the  control  of 
the  Legislature  to  regulate  so  long  as  the  parties  are  left  en- 
tirely free  to  make  whatever  contract  they  choose,  as  they  are  in 
this  case."  * 

The  constitutionality  of  the  Ohio  Compensation  Law  was 
passed  upon  in  the  case  of  State  v.  Creamer.  The  court  said: 

"The  statute  in  question  provides  for  the  creation  of  a State  Lia- 
bility Board  of  Awards,  which  shall  establish  a state  insurance 
fund,  from  premiums  paid  by  employers  and  employees  in  the  manner 
provided  in  the  act."  **  The  act  applied  only  to  businesses  where 

* Sexton  v.  Newark  District  Telegraph  Co.  86  Att.  451. 

**  State  v.  Creamer.  85  Ohio  State  349. 


16. 


the  employer  had  five  or  more  operatives  regularly,  and  the  workers 
paid  10  <fo  while  the  employers  paid  90  Employers  who  accepted 
were  relieved  of  the  liability  to  respond  in  damages  at  common  law, 
and  employers  who  did  not  accept  the  act  were  deprived  of  the 
defenses  of  contributory  negligence,  fellow-servant  rule,  and  as- 
sumption of  risk.  The  act  was  attacked  as  beyond  the  police  power, 
taking  private  property  without  due  process  of  law,  and  depriving 
parties  of  jury  trial  and  freedom  of  contract.  The  court  upheld 
the  act  against  all  these  contentions.  With  regard  to  the 
police  power,  it  quotes  favorably  from  Freund  as  follows:"  "The 
term  "police  power"  has  never  been  circumscribed.  It  means  at 
the  same  time  a power  and  function  of  government,  a system  of 
rules,  and  an  administrative  organization  and  force.’  And  in  sec- 
tion 5,  after  discussing  its  nature  and  aims,  he  says:  ’It  will 

reveal  the  police  power  not  as  a fixed  quantity,  but  as  the  ex- 
pression of  social,  economic,  and  political  conditions.  As  long 
as  these  conditions  vary,  the  police  power  must  continue  to  be 
elastic;  i.e.,  capable  of  development.1  ...  We  think  it  clear 
that  the  objects  and  purposes  as  above  set  forth,  which  the  leg- 
islature contemplated  in  the  passage  of  the  law  in  question,  are 
sufficient  to  sustain  the  exercise  of  the  police  power"  * In 


* 


Ibid. 


17 


taking  up  the  charge  of  taking  private  property  without  due  pro- 
cess of  law,  the  court  discussed  the  Ives  case,  as  follows:  "The 

(Hew  York)  court  held  the  law  invalid  as  imposing  the  ordinary 
risks  of  a business  on  the  employer.  The  court  states  one  of  the 
premises  on  which  it  proceeds  as  follows:  rWhen  our  constitutions 

were  adopted  it  was  the  law  of  the  land  that  no  man  who  was  with- 
out fault  or  negligence  could  be  held  liable  in  damages  for  injuries 
sustained  by  another.1  But  that  rule  was  not  of  universal  appli- 
cation. At  common  lav;  one  may  sustain  such  relation  to  the  incep- 
tion of  an  undertaking  that  he  will  be  held  liable  for  negligence 
in  the  progress  of  the  enterprise,  even  though  he  have  no  part 
or  connection  with  the  negligent  act  itself  which  caused  the 
injury.  ...  As  to  the  right  to  abolish  the  defense  ojr  assumption 
of  risk, it  is  enough  to  say  here  that  the  great  weight  of  author- 
ity is  against  the  Hew  York  Court.  ...  1 Indeed,  the  great  office 
of  statutes  is  to  remedy  defects  in  the  common  law  as  they  are 
developed,  and  to  adapt  it  to  the  changes  of  time  and  circum- 
stances." * 

The  Washington  statute  was  a compensation  act  with 
compulsory  insurance  — a step  in  advance  of  most  of  the  previously 
considered  compensation  laws.  The  Supreme  Court  of  the  State  of 


* 


Ibid. 


' 


1 


' 


, 


18. 


Washington  upheld  this  statute  in  the  case  of  State  v.  Clausen  as 
a valid  exercise  of  the  police  power,  and  as  not  violating  due 
process  of  law,  jury  trial,  or  freedom  of  contract.  The  court  said: 
"The  test  of  the  validity  of  such  a law  is  not  found  in  the 
inquiry:  Does  it  do  the  objectionable  things?  But  is  found  rather 

in  the  inquiry:  Is  there  no  reasonable  ground  to  believe  that 

the  public  safety,  health,  or  general  welfare  is  promoted  thereby? 
...  It  is  not  meant  here  to  be  asserted  that  this  (police)  power 
is  above  the  constitution,  or  that  everything  done  under  the  police 
power  is  lawfully  done.  It  is  meant  only  to  be  asserted  that  a 
law  which  interferes  with  personal  and  property  rights  is  valid 
only  when  it  tends  reasonably  to  correct  some  existing  evil  or  pro- 
mote some  interest  of  the  state,  and  is  not  in  violation  of  any 
direct  and  positive  mandate  of  the  constitution.  The  clause 
of  the  constitution  now  under  consideration  (due  process  of  law) 
was  intended  to  prevent  the  arbitrary  exercise  of  power,  or  undue, 
unjust,  and  capricious  interference  with  personal  rights;  not  to 
prevent  those  reasonable  regulations  that  all  must  submit  to  as 
a condition  of  remaining  a member  of  society."  * The  courts  are 
beginning  to  take  a more  liberal  attitude,  for  they  realize  that  the 


* 


State  v.  Clausen.  117  Pac.  p.  110:6-7 


19. 


employee  and  employer  are  not  on  an  equal  footing. 

Another  1911  compensation  act  was  questioned.  It  was 
a Wisconsin  statute,  elective  as  to  all  employments  except  those 
having  less  than  four  employees,  hut  employers  having  more  than 
four  employees  lost  the  common  law  defenses  if  they  did  not  elect. 
The  law  was  attacked  as  to  classification;  hut  the  court  held  that 
there  was  substantial  difference  between  the  two  clauses  , and 
thus  the  constitution  was  not  violated.  The  court  further  held 
that  it  was  not  necessary  to  make  a distinction  between  dangerous 
and  safe  employments  as  a basis  for  abrogating  common  lav/  defenses, 
and  with  regard  to  liability  v/ithout  fault,  said,  "Under  the 
statutory  system  for  dealing  w ith  personal  injury,  losses  incident 
to  the  performance  of  the  duties  of  an  employer  are  regarded  as 
mutual  misfortunes  to  be  charged  up,  as  directly  as  practicable, 
to  the  cost  of  production.  The  right  to  have  the  employer  regarded 
as  the  agency  to  make  payment  to  the  employee  and  absorb  the  same 
as  an  expense  of  the  industry,  regardless  of  v/hether  the  loss  is 
attributable  to  any  human  fault,  is  a legislative  creation,  within 
the  constitutional  exercise  of  the  police  power  to  legislate  for 
the  public  welfare."  * 

Four  compensation  lav/s  were  enacted  in  1912.  Arizona, 

* 


Borgnis  v.  Falk  Go 


133  N.W.  209 


' 

, 


. 


, 


20. 


Michigan,  and  Rhode  Island  enacted  acts  and  Maryland  again  tried 
her  hand  at  workmen’s  compensation  which  was  not  questioned  this 
time.  The  laws  of  the  other  three  states  were  attacked  and  in  every 
instance  upheld. 

The  Arizona  statute,  a compulsory  one  as  to  certain 
ennumerated  hazardous  employments  and  elective  as  to  others^ was 
upheld  in  the  case  of  Behringer  v.  Inspiration  Consolidated  Copper 
Co.  The  provision,  though,  giving  the  personal  representative  of 
an  employee  whose  injuries  were  fatal  the  option  of  choosing 
between  compensation  and  suit  for  damages  was  held  beyond  the  power 
of  the  legislature  because  the  representative  had  only  the  right 

to  sue  in  case  the  injured  man  had  failed  to  make  election  before 

his  death.* 

The  Michigan  law  was  upheld  in  the  case  of  Mackin  v. 
Detroit  Timkin,  4*Le  Co.  **  and  the  Rhode  Island  statute  was 
upheld  in  the  case  of  Sayles  v.  Foley.  ***  The  arguments  employed 

were  much  the  same  as  those  used  in  preceding  cases. 

The  year  1913  was  another  fruitful  one  for  compensation, 
as  eight  laws  were  enacted  in  the  states  of  Connecticut,  Iowa, 
Minnesota,  Nebraska,  Oregon,  Texas,  New  York,  and  West  Virginia. 

* Behringer  v.  Inspiration  Consolidated  Copper  Co. 

149  Pac.  1065. 


Mackin  v.  Detroit  Timkin  <|jtf.e  Co.  150  N.W.  49. 
Sayles  v.  Foley,  '96  Atl.  340 


21. 

The  laws  of  all  these  states  except  Connecticut  and  Nebraska  were 
questioned  before  1917.  New  York, after  the  defeat  of  her  first  act 
in  the  case  of  Ives  v.  South  Buffalo  Railway  Co. , amended  her  con- 
stitution and  again  enacted  a compulsory  law  which  was  upheld  in 
the  case  of  Jensen  v.  Southern  Pacific  Co.  The  court  said:  "This 

subject  should  be  viewed  in  the  light  of  modern  conditions,  not 
those  under  which  common-law  doctrines  were  developed.  With  the 
change  in  industrial  conditions,  an  opinion  has  gradually  developed, 
which  almost  universally  favors  a more  just  and  economical  system 
of  providing  compensation  for  accidental  injuries  to  employees 
as  a substitute  for  wasteful  and  protracted  damage  suits,  usually 
unjust  in  their  results.  ...  Surely  it  is  competent  for  the 
state  in  the  promotion  of  the  general  welfare  to  require  both 
employer  and  employee  to  yield  something  toward  the  establishment 
of  a principle  and  plan  of  compensation  for  their  mutual  protection 
and  advantage."*  The  New  York  Court  has  at  last  abandoned  its 
rather  conservative  attitude,  and  swung  into  line  v/ith  general 
public  opinion. 

The  West  Virginia  statute  was  an  elective  one f and  was 
upheld  in  the  case  of  De  Francesco  v.  Piney  Mining  Co.  With  regard 

* Jensen  v.  Southern  Pacific  Co.  109  NE.  600. 


22. 


to  the  abrogation  of  the  common  law  defences,  this  court  said, 

"The  defences  inhibited  or  barred  are  such  as  the  legislature  had 
a clear  right  to  eliminate  for  reasons  of  public  policy."  * 

The  Oregon  elective  statute  was  upheld  in  the  case  of 
Evanhoff  v.  Industrial  Commission  of  Oregon,  mainly  as  an  exercise 
of  police  power.  The  court  in  concluding  its  decision  said: 

"Before  its  enactment  one  workman  out  of  three  received  a large 
compensation  for  his  injuries  by  an  action  at  law,  while  the  re- 
maining two  were  defeated  and  got  nothing.  Now  every  workman  ac- 
cepting its  provisions  receives  some  compensation  if  injured;  ... 

It  has  been  a boon  to  the  employers,  the  employed,  and  the  commun- 
ity, which  latter  could  formerly  only  offer  to  the  injured  laborer 
the  charity  of  the  almshouse  instead  of  that  just  compensation 
which  he  may  now  receive  without  the  humiliation  of  pauperism  or 
the  loss  of  self-respect."  ** 

The  Minnesota  elective  statute  was  sustained  in  the 
case  of  Matheson  v.  Minneapolis  St.  Ry.  Co.  The  court  said: 

"...  and  such  choice  is  no  less  optional  because  section  2 (per- 
mitting election  in  absence  of  a written  statement  to  the  contrary) 
is  presumed  to  have  been  accepted  by  all  employers  and  employees. "*** 

* 


De  Francesco  v.  Piney  Mining  Co.  86  ,$.E.  777. 

Evanhoff  v.  State  Industrial  Commission.  154  Pac.  106. 
Matheson  v.  Minneapolis  St.  Ry.  Co.  148  N.W.  7£. 


! 


23 


The  Iowa  act  was  upheld  in  the  case  of  Hunter  v.  Colfax 
Consolidated  Coal  Co.*  and  the  Texas  law  in  the  case  of  Middleton 
v.  Texas  Power  and  light  Co.  **  The  decision  followed  much  in 
the  trend  of  previous  opinions,  especially  the  Illinois  and  New 
Jersey  cases. 

1914  saw  the  enactment  of  two  statutes,  one  in  Kentucky 
and  the  other  in  Louisiana.  The  Louisiana  law  was  not  questioned; 
hut  the  Kentucky  act  was  attacked  in  the  case  of  Kentucky  State 
Journal  Co.  v.  Workmen1 s Compensation  Board,  and  declared  unconsti- 
tutional. The  Kentucky  constitution  in  section  54  provides  that 
"The  General  Assembly  shall  have  no  power  to  limit  the  amount  to 
he  recovered  for  injuries  resulting  in  death,  or  for  injuries 
to  person  or  property."  The  Compensation  Act  provided  that  a 
contract  binding  an  employee  to  accept  the  provisions  of  the  act 
should  he  "conclusively  presumed  to  have  been  made  on  his  continu- 
ing to  work  for  the  employer,  posting  notices  that  he  had  paid 
premiums  provided  for  by  the  act."  ***  The  court  held  that 
this  part  of  the  act  did  limit  the  amount  recoverable  and  was  thus 
in  contravention  to  the  section  54  of  the  state  constitution.  Sec- 
tion 241  of  the  constitution  further  gives  the  right  to  sue  for 


Hunter  v.  Colfax  Consolidated  Coal  Co.  154  N.W.  1037. 

Middleton  v.  Texas  Power  and  Light  Co.  185  S.W.  556. 

Kentucky  State  Journal  Co.  v.  Workman's  Compensation 
Board.  170  S.W.  1166. 


24 


damages  in  the  case  of  injuries  causing  death  and  the  court  held 
that  a law  to  he  valid  must  not  thus  restrict  the  rights  of  per- 
sonal representatives.  The  law  was  declared  unconstitutional 
mainly  on  technical  grounds.  In  concluding  its  decision^ 
the  court  said:  "This  court  looks  with  great  favor  upon  a work- 

mens compensation  act  that  would  deal  justly  with  the  employer  and 
employee."  * 

Seven  new  states  (Colorado,  Indiana,  Maine,  Oklahoma, 

Pennsylvania,  Vermont,  and  Wyoming)  enacted  compensation  laws  in 

1915;  and,  in  addition,  Montana  again  passed  a compensation  act 

OklAhemq  an4 

— this  time  an  elective  one.  Only  the ^Pennsylvania  statutes  were 
attacked ^ and  the  Pennsylvania  statute  was  upheld  in  the  case  of 
Anderson  v.  Carneigie  Steel  Co.  **  The  act  was  elective  and 
sustained  on  the  same  grounds  as  most  of  the  other  elective  acts 
had  been. 

The  California  statute  of  1911  which  was  decided  upon 
in  1915  went  farther  than  any  preceding  law.  The  act  was  of  a 
comprehensive  and  compulsory  character,  providing  that  "liability 
for  the  compensation  provided  by  this  act,  in  lieu  of  any  other 

* 

** 


Ibid. 

Anderson  v.  Carnegie  Steel  Co.  99  Atl.  215 


♦ 

(&._  ■ 

' 

. 

, 

. 


. 


. 


. 


25 


liability  whatsoever,  shall,  without  regard  to  negligence,  exist 
against  an  employer  for  any  personal  injuries  sustained  by  his 
employees  by  accident  arising  out  of  and  in  the  course  of  employ- 
ment and  for  the  death  of  any  such  employee  if  the  injury  shall 
proximately  cause  death  where  the  following  conditions  of  compen- 
sation shall  concur:  (1)  Where,  at  the  time  of  the  accident 

both  the  employer  and  the  employee  are  subject  to  the  compensation 
provisions  of  this  act.  (2)  Where,  at  the  time  of  the  accident, 
the  employee  is  performing  service  growing  out  of  and  incidental 
to  his  employment.  ...  (3)  Where  the  injury  is  proximately 

caused  by  the  accident,  ...  with  or  without  negligence,  and  is 
not  so  caused  by  the  intoxication  or  the  wilful  misconduct  of  the 
injured  employee.”  * The  act  was  upheld  in  the  case  of  the  West- 
ern Indemnity  Co.  v.  Pillsbury,  the  court  saying,  ”If  such  a law 
may  be  given  force,  the  sanction  for  it  must  be  found  in  that 
legislative  authority  usually  termed  the  police  power.  . . . The  ar- 
bitrary taking  of  life,  liberty,  or  property  cannot,  of  course, 
be  justified  by  referring  the  act  to  the  police  power.  But,  if 
a given  piece  of  legislation  may  fairly  be  regarded  as  necessary 
or  proper  for  the  protection  or  furthering  of  a legitmate  public 

* 


California  Statutes,  1911.  p.  796.  Section  12. 


26 


interest,  the  mere  fact  that  it  hampers  private  action  in  a mat- 
ter which  had  heretofore  been  free  from  interference  is  not  a suf- 
ficient ground  for  nullifying  the  act."  * This  view  shows  much 
progress  in  the  direction  of  workmen's  compensation,  and  it  embodies 
as  liberal  a decision  as  has  been  handed  down  by  a state  court. 

This  act  v/as  upheld  after  several  elective  laws  had  been  upheld, 
and  with  regard  to  the  compulsory  feature,  the  court  said,  " ... 
the  general  line  of  reasoning  (that  elective  compensation  does 
not  deprive  the  parties  of  jury  trial  or  freedom  of  contract,  and 
that  the  act  is  an  exercise  of  the  police  power)  would,  if  pursued 
to  its  logical  results,  go  far  toward  sustaining  even  such  an 


in  the  case  ofAdams  v.  Iten  Biscuit  Company  gainst  the  con- 

tentions that  it  did  away  with  due  process  of  law  and  jury  trial, 
and  said  it  was  entirely  proper  for  the  legislature  to  abolish 
the  common  law  defenses.  The  court  quoted  favorably  in  regard  to 
these  from  other  state  courts  which  had  upheld  such  acts,  especially 
from  the  California  court  which  also  sustained  a compulsory  act. 

The  court, after  saying  that  the  act  was  "in  accordance  with  an 
enlightened  modern  public  opinion,"  **'  continued  as  follows: 


The  Oklahoma  law  v/as  also  compulsory,  and  it  was 


Western  Indemnity  Co.  v.  Pillsbury,  151  Pac.  398. 
(1915) 


Ibid. 

Adams  v.  Iten  Biscuit  Company,  630  Okalhoma  52 


, 


1 


. 

, 


. 


27 


"Instead  of  the  losses  being  borne  as  heretofore , in  a great  maj- 
ority of  cases, by  the  injured  employee  or  his  dependent  ones,  it 
was  the  belief  that  such  losses  should  be  borne  by  the  industries 
causing  them.  ...  " * The  act  was  upheld  under  the  police  power, 
the  court  saying,  "The  security  of  the  state  and  the  preservation 
of  the  peace  and  good  order  of  society  depends,  in  its  final  anal- 
ysis, upon  the  power  of  the  state  to  make  and  alter  its  laws  in 
accordance  with  a sound  public  policy,  and  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education  and  good  order 
of  the  people,  and  every  member  of  society  obtains  and  holds 
all  that  he  possesses  through  the  aid  and  under  the  protection  of 
the  law  and  subject  to  the  power  mentioned,  else  the  right  of  the 
community  to  prosper  and  advance  and  promote  the  public  weal  would 
he  rendered  subservient  to  the  enjoyment  of  private  rights.”  ** 

Such  were  the  conditions  in  1916  when  the  power  of 
appeal  from  the  State  Supreme  Court  to  the  Federal  Supreme  Court 
was  widened.  Four  states  (Maryland,  Montana,  Hew  York  and  Kentucky) 
had  enacted  laws  which  we re  declared  unconstitutional;  but  in 
every  instance  these  states  enacted  new  laws  which  were  either 

* Ibid. 


Ibid 


, 


28 


upheld  or  not  questioned.  Twenty-nine  other  states  (Arizona, 
California,  Colorado,  Connecticut,  Illinois,  Indiana,  Iowa, 

Kansas,  Louisiana,  Maine,  Massachusetts,  Michigan,  Minnesota, 
Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  Ohio,  Oklahoma, 

Oregon,  Pennsylvania,  Rhode  Island,  Texas,  Vermont,  Washington, 

West  Virginia,  Wisconsin,  and  Wyoming)  had  enacted  statutes  which 
were  either  sustained  or  not  attacked,  thus  making  a total  of  thirty 
three  states  which  had  compensation  statutes.  Six  of  these  states 
(Arizona,  California,  Maryland,  New  York,  Ohio,  and  Oklahoma) 
had  compulsory  provisions. 

The  act  v/idening  appeal  was  passed  in  September,  1916, 
and  part  of  it  reads  as  follows:  "It  shall  be  competent  for  the 

Supreme  Court,  by  certiorari  or  otherwise,  to  require  that  there 
shall  be  certified  to  it  for  review  and  determination  with  the 
same  power,  and  authority  and  w ith  like  effect  as  if  brought  up 
writ  of  error,  any  cause  wherein  a final  judgment  or  decree  has 
been  rendered  or  passed  by  the  highest  court  of  a state  in  which 
a decision  could  be  had,  where  is  drawn  in  question  the  validity 
of  a treaty  or  statute  of,  or  an  authority  exercised  under  the 
United  States,  and  the  decision  is  in  favor  of  their  validity; 
or  where  is  drawn  in  question  the  validity  of  a statute  of, 
or  an  authority  exercised  under  any  State,  on  the  ground  of  their 
being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  Un- 
ited States,  and  the  decision  is  against  their  validity;  or  where 
any  title,  right,  privilege,  or  immunity  is  claimed  under  the 


, 


r 


1 ? ? 


29 


the  Constitution  or  any  treaty  or  statute  of,  or  commission  held 
or  authority  exercised  under  the  United  States,  and  the  decision 
is  either  in  favor  of  or  against  the  title,  right,  privilege,  or 
immunity  especially  set  up  or  claimed  by  either  party,  under  such 
Constitution,  treaty,  statute,  commission,  or  authority.”  * 

As  a result^ appeals  came  to  the  Supreme  Court.  In  the  next 
year, three  important  cases  — New  York  Central  Railway  Company  v. 
White,  from  the  state  of  New  York;  Hawkins  v.  Bleakly  from  Iowa; 
Mountain  Timber  Company  v.  Washington  — came  before  the  Supreme 
Court  involving  the  validity  of  three  different  kinds  of  compen- 
sation acts,  and  in  every  instance  the  acts  were  upheld. 

With  regard  to  the  New  York  statute,  the  court  held  that 
”the  compulsory  compensation  scheme  of  the  New  York  Compensation 
act,  " **  abolishing  the  common  lav/  defences  and  in  their  place 
imposing  a liability  upon  employers  to  make  compensation  for  dis- 
abling or  fatal  accidental  injuries  received  by  employees  ”in  the 
course  of  their  employment  in  certain  gainful  occupations  denomin- 
ated 'hazardous  employments'  without  regard  to  fault  as  a cause, 
except  where  the  injury  or  death  is  occasioned  by  the  employee’s 

* United  States  Statutes,  C 448  239  Stat.  726. 

**  New  York  Central  Ry.  Co.  v.  White  243  U.S.  188. 


, 


t 


, 


r 


30 


wilful  intention  to  produce  it,  or  where  the  injury  results 
solely  from  intoxication  while  on  duty,  ...  does  not  contravene 
the  United  States  Constitution,  fourteenth  Amendment  as  taking 
property  without  due  process  of  law,  or  unwarrantably  limiting 
freedom  of  contract,  when  considered  from  the  standpoint  of  em- 
ployer or  employee,  hut  is  a valid  exercise  of  the  police  power 
of  the  state."*  The  court  further  said:  "And  we  recognize  that 

the  legislation  under  revi ew  does  measurably  limit  the  freedom  of 
employer  and  employee  to  agree  respecting  the  terms  of  employment, 
and  that  it  cannot  be  supported  except  on  the  ground  that  it  is  a 
reasonable  exercise  of  the  police  paver  of  the  state.  In  our 
opinion  it  is  fairly  supportable  upon  that  ground.  And  for  this 
reason:  The  subject  matter  in  respect  of  which  freedom  of  contract 
is  restricted  is  the  matter  of  compensation  for  human  life  or 
limb  lost  or  disability  incurred  in  the  course  of  hazardous  employ- 
ment, and  the  public  has  a direct  interest  in  this  as  affecting 
the  common  welfare.  'The  whole  is  no  greater  than  the  sum  of  all 
the  parts,  and  when  the  individual  health,  safety,  and  welfare  are 
sacrificed  or  neglected,  the  state  must  suffer.'  Holden  v.  Holden, 
169  U.S.  366.  ...  Laws  regulating  the  responsibility  of  employers 
for  the  injury  or  death  of  employee 9,  arising  out  of  the  employ- 

* 


Ibid 


31. 


ment,  bear  so  close  a relation  to  the  protection  of  the  lives  and 
safety  of  those  concerned  that  they  properly  may  be  regarded  as 
coming  within  the  category  of  police  regulations."  * 

The  next  case  which  came  up  was  the  one  questioning  the 
validity  of  the  Iowa  elective  compensation  statute,  **  and  the  Iowa 
act  was  naturally  upheld  after  a reference  to  the  New  York  Case. 

The  Washington  act,  however,  presented  a different  prob- 
lem, for  in  that  state  employers  in  the  specified  hazardous  employ- 
ments were  compelled  to  pay  workmen* s compensation  premiums  to  a 
state  insurance  fund.  The  statute  was  attacked  as  denying  due 
process  of  law,  the  equal  protection  of  the  law,  and  beyond  the 
police  power.  The  act  was  sustained,  nevertheless,  but  by  only  a 
five  to  four  decision.  In  taking  up  this  case,  the  court  judged 
it,  "proper  to  consider:  fl)  Whether  the  main  object  of  the 

legislation  is,  or  reasonably  may  be  deemed  to  be,  of  general 
and  public  moment,  rather  than  of  private  and  particular  interest, 
so  as  to  furnish  a just  occasion  for  such  interference  with  personal 
liberty  and  the  right  of  acquiring  property  as  necessarily  must 
result  from  carrying  it  into  effect.  (2)  Whether  the  charges 
imposed  upon  employers  are  reasonable  in  amount,  or,  on  the  other 

* Ibid 

**  Hawkins  v.  Bleakly,  243  U.S.  210 


' 


, 


32. 

hand,  so  burdensome  as  to  be  manifestly  oppressive,  and  {3) 
whether  the  burden  is  fairly  distributed,  having  regard  to  the 
causes  that  give  rise  to  the  need  for  the  legislation.  ... 

As  to  the  first  point:  The  authority  of  the  states  to  enact  such 

laws  as  reasonably  are  deemed  to  be  necessary  to  promote  the  health, 
safety,  and  general  welfare  of  their  people  carries  with  it  a 
wide  range  of  judgment  and  discretion  as  to  what  matters  are  of 
sufficiently  general  importance  to  be  subjected  to  state  regulation 
and  administration.  ...  (The  State)  may  require  that  these 
human  losses  shall  be  charged  against  the  industry,  either  directly 
...  or  by  publicly  administering  the  compensation  and  distributing 
the  cost  among  the  industries  affected.  ...  Upon  this 
(the  second)  point  no  particular  contention  is  made  that  the  compen- 
sation allowed  is  unduly  large;  and  it  is  evident  that,  unless 
it  be  so,  the  corresponding  burden  upon  the  industry  cannot  be 
regarded  as  excessive  if  the  state  is  at  liberty  to  impose  the  en- 
tire burden  upon  the  industry.  ...  Upon  the  third  question  — 
the  distribution  of  the  burden  — there  is  no  criticism  of  the 
act  in  its  details.”* 

In  the  following  year  the  Texas  case  was  appealed  to 

* Mountain  Timber  Co.  v.  Washington.  243  U.S.  219. 


. 


< 


...  . 


, 


. . . 


33. 


the  federal  Supreme  Court,  and  attached  as  making  an  unfair  clas- 
sification, denying  equal  protection  of  the  lav/s  and  due  process 
of  law.  Employers  having  less  than  five  employees,  and  certain 
other  industries  such  as  farming  were  excepted;  but  the  court 
held  that  it  was  "not  such  an  arbitrary  classification  as  to  deny 
the  equal  protection  of  the  laws."  * The  other  contentions  were 
disposed  of  by  a reference  to  the  New  York  and  Washington  cases. 

The  next  case.  New  York  Central  Railway  Company  v. 

Bianc,  came  up  as  the  result  of  an  amendment  to  the  New  York  Act, 
which  reads  as  follows:  "In  case  of  an  injury  resulting  in  ser- 

ious facial  or  head  disfigurement  the  Commission  may  in  its  dis- 
cretion, make  such  award  or  compensation  as  it  may  deem  proper  and 
equitable,  in  view  of  the  nature  of  the  disfigurement,  but  not  to 
exceed  three  thousand  five  hundred  dollars."  **  The  Supreme 
Court,  however,  upheld  the  act,  saying  that  "the  'due  process  of 
law'  clause  of  the  fourteenth  Amendment  does  not  require  the  states 
to  base  compulsory  compensation  solely  upon  loss  of  earning  power." 

Two  other  cases  came  up  in  1919,  both  of  them  relating 
to  admiralty  and  maritime  jurisdiction.  The  Judicial  Code  of  the 


* 


Middleton  v.  Texas  Light  and  Power  Co.  249  U.S.  152 
New  York  Laws.  1916.  Chap.  622.  sec.  15. 

New  York  Central  Ry.  Co.  v.  Bianc.  250  U.S.  596. 


34. 


United  States  provided  that  the  jurisdiction  of  the  United  States 
courts  should  he  exclusive  of  "all  civil  cases  of  admiralty  and 
maritime  jurisdiction,  saving  to  suitors,  in  all  cases,  where  the 
common  law  remedy,  where  the  common  law  is  competent  to  give 
it."*  This  was  amended  on  October  6,  1917  by  adding  the  words, 
"and  to  claimants  the  rights  and  remedies  under  the  Workmen's 
Compensation  Law  of  any  State."  ** ***  In  the  case  of  Peters  v.  Yeasey, 
***  the  Federsl  Supreme  Court  reversed  a judgment  of  the  Louisiana 
Supreme  Court  which  held  that  the  amendment  had  retroactive 
effect.  In  the  second  case,  Knickerbocker  Ice  Compant  v.  Stewart, 
the  amendment  itself,  upon  the  ground  of  the  exclusiveness  of  Federal 
jurisdiction, was  declared  unconstitutional  as  beyond  the  power  of 
Congress  "to  legislate  concerning  rights  and  liabilities  within 
the  maritime  jurisdiction."  **** 

Three  other  cases  involving  workmen's  compensation  have 
come  up  before  the  Supreme  Court.  In  the  first,  Thorton  v.  Duffy, 
the  court  held  that  a "ruling  of  a state  (Ohio)  industrial  commis- 

* Judicial  Code,  Clause  Third.  256. 

**  U.  S.  Statutes,  Chap.  97,  40  Stat.  at  L.  395. 

***  Peters  v.  Yeasey  251  U.S.  121 

****  Knickerbocker  Ice  Co.  v.  Stewart.  253  U.S.  149. 


. 


t 


, 

. * 


35 


sion,  justified  or  demanded  by  a change  in  the  state  law,  by  which 
the  commissioner,  revoking  its  previous  discretionary  action,  de- 
clares that  no  employers  shall  be  permitted  to  pay  or  furnish  di- 
rectly to  injured  employees  or  to  the  dependents  of  killed  em- 
ployees the  compensation  and  benefits  provided  for  in  the  state 
Workmen’s  Compensation  Law  if  such  employees,  by  contract  or  other- 
wise, ahall  provide  for  the  insurance  of  the  payment  by  them  of 
such  compensation  and  benefits,  or  shall  indemnify  themselves  ag- 
ainst loss  sustained  by  the  direct  payment  thereof,  does  not 
unconstitutionally  impair  the  obligations  of  insurance  contracts 
entered  into  upon  the  faith  of  the  previous  ruling  of  the  commission, 
nor  does  such  ruling  amount  to  a denial  of  due  process  of  law  or 
of  the  equal  protection  of  the  laws."  * The  courted  cited  favorably 
from  the  New  York  and  especially  the  Washington  case,  and  added 
that  "the  law  expressed  the  constitutional  and  legislative  policy 
of  the  state  to  be  that  the  compensation  to  workmen  for  injuries 
received  in  their  employment  was  a matter  of  public  concern, 
and  should  not  be  left  to  the  individual  employer  or  employee, 
or  be  dependent  upon  or  influenced  by  the  hazards  of  controversy 
or  litigation,  or  unequality  of  conditions."  ** 

* Thornton  v.  Duffy.  254  U.S.  361. 

**  Ibid. 


, 


, 


, 


Hi 


; ' . ..~:r  - • 


36 


In  the  next  ease,  Tower  Vein  Goal  Company  v.  Industrial 

Board  of  Indiana,  the  court  held  that  a state  might  "consistently 

with  the  due  process  of  law  and  equal  protection  of  the  laws  clauses 

of  the  Federal  Constitution,  enact  a general  workmen1 s compensation 

law  applicable  to  all  employees,  and  make  it  compulsory  as  to  one 

hazardous  employment  (coal  mining)  and  elective  as  to  all  others, 

except  railway  employees  engaged  in  train  service,  who  are  excluded." 
* 

In  the  last,  a minor  case,  it  was  held  that  the  general 
admiralty  jurisdiction  extended  to  a "proceeding  to  recover  damages 
resulting  from  a tort  committed  on  a vessel  in  process  of  construc- 
tion when  lying  on  navigable  waters  within  a state."  ** 

These  federal  decisions  together  with  the  state  supreme 
court  decisions,  have  finally  assured  the  constitutionality  of 
workmen* s compensation.  Today  the  trend  of  legislation  lies  in 
the  direction  of  more  adequate  and  certain  relief,  and  the  simpli- 
fication of  procedure  to  accomplish  the  desired  end  of  prompt  and 
equitable  consideration  of  claims  on  account  of  industrial 

injuries."  *** _ Besides  this,  ten  additional  states  (Deleware,  Jdciho, 
/vp'sioi/r/,  b«u>  A/cji’to,  /Y<>rT6 

Georgia,,,  South  Dakota,  Utah,  Kansas,  and  Tennessee)  have  enacted 

* Tower  Vein  Coal  Co.  v.  Industrial  Board  of  Indiana, 

65  L.  ed.  383. 


Grant  Smith--Porter  Ship  Co.  v.  Rhode.  66  L.  ed.  172 
Monthly  Labor  Review,  April,  1921.  p.  417. 


. ■*  • . 


, 

< - p 

f 


’ 


. 

t 

* 

. . 


37 


compensation  acts,  thus  making  a total  of  forty- three  states  with 
such  provisions. 

In  cnncluding,  we  may  note  that  there  is  one  underlying 
principle  in  the  legislative  action^ based  upon  the  fact  that  the 
employer  and  employee  are  no  longer  on  an  equal  footing.  The 
legislature  has  then  attempted  to  place  them  upon  a more  equal 
plane,  but  the  courts  have  been  sloner  and  more  conservative  in 
adopting  this  view.  Part  of  this  may  be  explained  by  a legal 
theory  which  held  that  law  was  based  on  certain  principles  of 
justice  which  were  eternal  and  immutable.  This  led  to  the  idea 
that  legal  right  was  an  unchanging  thing,  and  there  was  a(,tendency 
in  the  legal  mind  to  regard  constitutions  as  unchanging.  * Having 
set  up  certain  rules,  the  courts  were  loathe  to  abandon  them.  In 
time,  however,  the  pressure  of  a general  public  opinion  and  the 
actions  of  the  legislatures,  have  forced  the  courts  to  give  way. 
Modifications  were  made  slowly^but  inevitably.  "Rights  generally 
regarded  as  absolute  are  coming  to  be  regarded  after  all  as  only 
relative."  **  The  courts  have  finally  accepted  the  view  that  the 
workmen  and  employer  are  not  equal,  and  have  acted  accordingly. 

* Groat,  Attitude  of  American  Courts  in  Labor  Cases, 

p.  360 


Ibid.  p.  117. 


